A sharply divided Supreme Court yesterday remanded Douglas v. Independent Living Center of Southern California, Inc. to the Ninth Circuit to determine whether the plaintiffs' case on the Supremacy Clause can move forward in light of the federal government's post-oral argument approval of defendant-California's reductions in its Medicaid plan. We previewed the oral argument here.

Douglas is a suit by California Medicaid providers and recipients against California for its changes to its Medicaid program. The plaintiffs argued that the changes violated federal Medicaid requirements and were therefore unconstitutional under the Supremacy Clause.

But soon after the Court heard oral argument in the case, the federal government approved California's changes. The parties agreed that this did not moot the case, however. (The plaintiffs still maintained that the state changes violated federal Medicaid requirements, even if the federal government disagreed.) So the question became: Can Medicaid providers and recipients sue the state under the Supremacy Clause, even after the federal government approved the state's Medicaid changes?

Justice Breyer, writing for a 5-justice majority, including Justices Kennedy, Ginsburg, Sotomayor, and Kagan, sent the case back to the Ninth Circuit for resolution of this question. He wrote that the parties didn't brief the issue at the Court, and that the Court wouldn't call for reargument on this question. Instead, the case goes back to the Ninth Circuit.

Cheif Justice Roberts wrote in dissent for himself and Justices Scalia, Thomas, and Alito. He said that nature of the Supremacy Clause, along with the Medicaid Act itself, means that the plaintiffs don't have a Supremacy Clause case. He pointed to the fact that the Medicaid Act itself doesn't provide a cause of action for its enforcement, and the Supremacy Clause can't step in to provide one. "That is not a proper role for the Supremacy Clause, which simply ensures that the rule established by Congress controls [over conflicting state law]."

Plaintiffs in the case have a cause of action against the federal government under the Administrative Procedures Act for its final approval of the California Medicaid changes, even if they don't have a cause of action against California under the Medicaid Act. If the Ninth Circuit rules that they have a cause of action against California under the Supremacy Clause, the plaintiffs may have an election between the APA claim against the federal government and the Supremacy Clause claim against the state.

In short, this case isn't over. In fact, it looks like it's just beginning.

This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management. Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities. The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House ofRepresentatives.

Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment. Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:

the history of invidious discrimination against the class burdened by the legislation;

whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;

whether the distinguishing characteristics are “immutable” or beyond the class members’ control;

the political power of the subject class

After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority."

In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources. For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."

The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:

Congressional caution in defining a legislative term and maintaining the status quo

Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostileanimus alone. It may result as well from insensitivity caused by simple want ofcareful, rational reflection or from some instinctive mechanism to guard againstpeople who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,J., concurring). This case was presented by an employee of the judicial branch against the executivebranch, which ultimately determined it could not legitimately support the law. The law wasthen defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,Nominee). In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her rightto equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Apart from the substance, Judge White's opinion is a model of organizational clarity. For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.

If editorials and other opinions pieces are any prediction, the Supreme Court will be affirming the Ninth Circuit's finding that the Stolen Valor Act provision 18 USC 704(b) is unconstitutional after today's oral argument.

In the Washington Post,the editorial board argues that to "allow the government to become the ultimate arbiter of truth would set a terrible precedent," and the USA TODAY editorial board argues that the media and veterans groups reveal fraudsters with the result of "public disgrace."

The op-ed inthe New York Times by William Bennett Turner advances a slippery slope argument:

If the Supreme Court were to accept the government’s argument, other disconcerting legislation could easily follow. Congress could enact a law that criminalized false claims by political candidates about their qualifications for office, or false claims about their opponents. Surely the government has an “important” interest in preventing voter deception. But as much as we want to encourage factual accuracy in our politicians, do we really want the government to prosecute, for example, Senator Marco Rubio, the Florida Republican who falsely stated on his Senate Web site that his parents moved from Cuba after — rather than before — Fidel Castro took power? Who among us has not said things about ourselves that are untrue? Who has not exaggerated or embellished details to tell a better story?

Professor Jonathan Turley on NPR editorialized about the First Amendment frailties of the Stolen Valor Act.

On Jurist, law student Kimberly Bennett argues that the Stolen Valor Act is not the least restrictive means of furthering the government's interest.

And over on the American Constitution Society blog, I've argued that it's important to consider the Stolen Valor Act as a viewpoint restriction.

[Update: There's a terrific round-up of the post-argument legal commentary by Kiran Bhat over at SCOTUSblog that provides more diversity of opinions].

The Supreme Court heard oral arguments today in United States v. Alvarez, the so-called "Stolen Valor" case. The Ninth Circuit, in a divided opinion, held a provision of the act unconstitutional: 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."

Taking the somewhat unusual step of deciding a case that would be resolved by a case already scheduled for oral argument, the Tenth Circuit weighed in on the issue last month, also in a divided panel opinion, but reaching the opposite conclusion.

The Solicor General argued for the concept of "breathing space" - - - imported from defamation doctrine as Justice Kennedy quickly pointed out - - - to be applied. Justice Roberts also rather quickly posed one of the many slippery slope scenerios:

CHIEF JUSTICE ROBERTS: Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't. That's something you can check pretty easily. And Congress can say: We want people to finish high school. It's a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don't.

Kennedy later posed another one in rebuttal, and generally seemed unconvinced by the "breathing space argument": "The whole breathing space thing almost has it backwards. It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don't think that's our tradition." yet Kennedy quickly added, " On the other hand, I have to acknowledge that this does diminish the medal in many respects."

The issue of "harm" also preoccupied the argument. The theory of the Solictor General (and Congress) is that those who have actually received medals are "harmed" because the value of the medals are diluted by false claims. Justice Sotomayor seemed unconvinced that there could be harm without pecuniary interests or individual harm to reputation, but the Solictor general maintained that the "misappropriation of governmental conferral of esteem" caused "substantial harm." In questioning Jonathan Libby, counsel for Alvarez, Justice Alito stated that the problem he had ith the argument was "determining which harms you think count and which harms don't count."

In discussing less restrictive means by which the government could accomplish its goals, Justice Scalia fancifully suggested a "Medal of Shame" for those who have falsely claimed the Medal of Honor, which Libby then distinguished from the more severe sanction of a criminal penalty.

Justice Ginsburg focused on the proposed amended Stolen Valor Act of 2011 that would criminalize false representations about medals “with the intent to obtain anything of value.” This led to a discussion of whether Alvarez would have been criminalized under that type of statute and what "a thing of value" would mean. Justice Scalia suggested that having a crowd cheer for one would be a thing of value. Then,

JUSTICE ALITO: Suppose what the person gets is -- is a date with a potential rich spouse. Would that be enough?MR. LIBBY: Your Honor, I think when it comes -- when you get into the situation where you're getting something like a date, I do not know that -- I certainly wouldn't consider that a non de minimis thing of value, but -­JUSTICE ALITO: Some people might have a different opinion.(Laughter.)

The opinion of Alito generally seemed to be that Congress has broad authority to criminalize falsehoods, but the opinions of the other Justices seemed less clear.

The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts. The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths. They have no judicial remedy in U.S. courts for any violation.

Section 7 of the MCA reads as follows:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

28 U.S.C. Secs. 2241(e)(1) and (2).

The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution.

The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause. The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause). So subsection (2) is still valid; and it bars the fathers' suit here.

The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right. The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional." Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).

Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.

Not surprisingly, the proponents contend that the panel "misapplied" Romer v. Evans. While Romer was a centerpiece of the panel's opinion regarding "animus," the proponents argue that the panel construed Romer as a question of "timing" rather than "substance." With the animus issue thus defused, the proponents then argue that the panel's holding that "Proposition 8 does not bear even a rational relationship with the State’s indisputable interest in responsible procreation and childrearing conflicts directly with a decision of the Eighth Circuit and a host of other decisions."

More surprisingly, the proponents restate their argument regarding judicial disqualification:

Unbeknownst to the parties, at all times while presiding over and entering judgment in this case, former Judge Walker, like Plaintiffs, was a “resident[] of California … involved in [a] long-term … relationship with [an] individual[] of the same sex.”

(ellipses in original). The panel was unanimous on this point, as was the district judge, and the refusal to abandon the disqualification-because-of-sexual-orientation argument makes the proponents seem biased rather than the judge. Part of their argument seems to flow from their own assumption that judges are heterosexual: The proponents argue that judge's "refusal to disclose his long-term same-sex relationship was contrary to fundamental maxims of judicial propriety." Moreover, they argue that Judge Walker's same-sex relationship contravenes "the ancient principle that “[n]o man is allowed to be a judge in his own cause,” citing THE FEDERALIST NO. 10, at 74 (Clinton Rossiter ed., 2003). Yet as we've previously noted, given the proponents own arguments about the importance of heterosexual marriage, it is difficult to see how a heterosexual judge - - - or a married judge - - - would be any less "a judge in his own cause."

In a case that might be called the sequel to Grutter v. Bollinger, the United States Supreme Court granted certiorari today in Fisher v. University of Texas, a suit by a white woman challenging the post-Grutter admission plan at UT. (Justice Kagan recused). [Update: There's a terrific explanation of the procedural problems with the case, including Art III standing issues, by Adam Chandler].

The dissenting opinion to the denial of en banc review by the Fifth Circuit, authored by the high profile conservative Chief Judge Edith Jones, sets out the arguments against the panel's opinion, 631 F.3d 213, upholding the UT plan, arguing that the panel extends Grutter in three ways.

First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter’s reliance on strict narrow tailoring.

Second, it authorizes the University’s race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity.

Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious policy.

Jones continues, arguing that the meaning of "diversity" is less than coherent:

This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University’s race conscious admissions program. The state’s Hispanic population is predominately Mexican-American, including not only families whose Texas roots stretch back for generations but also recent immigrants. Many other Texas Hispanics are from Central America, Latin America and Cuba. To call these groups a “community” is a misnomer; all will acknowledge that social and cultural differences among them are significant. Whether the University also misleadingly aggregates Indians, Pakistanis and Middle Easterners with East “Asians” is unclear, but Houston alone is home to hundreds of thousands of people from East Asia, South Asia and the Middle East. In Texas’s major cities, dozens of other immigrant groups reside whose families have overcome oppression and intolerance of many kinds and whose children are often immensely talented. Privileging the admission of certain minorities in this true melting-pot environment seems inapt. But University administrators cherish the power to dispense admissions as they see fit, which might be reasonable except for two things: the Texas legislature has already spoken to diversity, and the U.S. Constitution abhors racial preferences. Because even University administrators can lose sight of the constitutional forest for the academic trees, it is the duty of the courts to scrutinize closely their “benign” use of race in admissions.

Jones later states,

The effect of the panel’s wholesale deference becomes clear when one considers the important factual distinction between this case and Grutter. In Fisher, the plaintiffs challenged a post-Grutter University plan whereby 19% of the entering freshman class were subject to a race-conscious admissions process to increase diversity. As Judge Garza’s concurrence demonstrates, the number of students actually admitted under this racial preference policy is unclear, but it amounted to no more than a couple hundred out of more than six thousand new students. . . . The panel opinion asserts that the University’s admission process is constitutionally acceptable because it is modeled closely after Grutter. Yet the difference is obvious. The Texas legislature statutorily mandated increased diversity in admissions by means of the Top Ten Percent Law. Under that race- neutral law, covering 80% of University admissions, the top ten percent of graduates from every Texas high school were automatically admitted, and many African-American and Hispanic students matriculated to the University. The challenged preferential policy was adopted on top of the unprecedentedly high numbers (compared to many other universities) of preferred minorities entering under the Top Ten Percent Law.

The pertinent question is thus whether a race-conscious admissions policy adopted in this context is narrowly tailored to achieve the University’s goal of increasing “diversity” on the campus. Contrary to the panel’s exercise of deference, the Supreme Court holds that racial classifications are especially arbitrary when used to achieve only minimal impact on enrollment.

. . . Finally, in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level—in a university that offers thousands of courses in multiple undergraduate schools and majors—justifies enhanced race-conscious admissions.

While Justice O'Connor ended the Court's opinion in Grutter with an expectation that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," it seems that Grutter will be revisited less than a decade later - - - and with O'Connor no longer on the Court and Kagan recused.

The Supreme Court on Friday stayed a Montana Supreme Court's ruling upholding the Montana state PAC requirement for corporate campaign expenditures, even in the face of Citizens United v. FEC. We posted on the Montana Supreme Court case, American Tradition Partnership, Inc. v. Bullock, here. Recall that the Montana court distinguished Citizens United, saying that the Montana PAC requirement wasn't onerous, that Montana campaign spending regulations are far less onerous than federal regulations and did not deter the plaintiff-corporations' spending, and that Montana has a unique history of powerful corporations, controlled by outsiders, dominating state politics. In short, the Montana court said that the state PAC requirement satisfied strict scrutiny and thus met the high bar for restrictions on independent corporate spending set in Citizens United.

Justices Ginsburg and Breyer wrote this on the Court's order:

Montana's experience, and experience elsewhere since this Court's decision in [Citizens United], make it exceedingly difficult to maintain that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption." [Citizens United.] A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed by buy candidates' allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court's decisions until they are withdrawn or modified, however . . . I vote to grant the stay.

The decision on Friday doesn't mean necessarily that the Court will hear the case, although it makes it likely. The stay remains in effect if the Court grants cert.; if not, it goes away.